STEVEN A. TYLER, PETITIONER V. UNITED STATES OF AMERICA
No. 88-1928
In the Supreme Court of the United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The order of the Court of Military Appeals affirming petitioner's
conviction (Pet. App. 1a) is not yet reported. The opinion of the Air
Force Court of Military Review (Pet. App. 2a-8a) is reported at 26
M.J. 680.
JURISDICTION
The judgment of the Court of Military Appeals was entered on March
31, 1989. The petition for a writ of certiorari was filed on May 30,
1989. The jurisdiction of this Court is invoked under 28 U.S.C.
1259(3) (Supp. V 1987).
QUESTION PRESENTED
Whether the trial judge's decision not to allow the defense to
question a prosecution witness about a collateral matter was
prejudicial to the defendant.
STATEMENT
Following a general court-martial at Fairchild Air Force Base in
Washington, petitioner, a member of the United States Air Force, was
convicted of the possession, use, and distribution of cocaine and the
use of marijuana, in violation of Article 112a of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. 912a (Supp. V 1987). He was
sentenced to confinement for ten years, a dishonorable discharge,
total forfeiture of pay and allowances, and a reduction in rank. The
convening authority approved the findings and sentence. The Air Force
Court of Military Review vacated petitioner's conviction for the
possession of cocaine, but otherwise affirmed the findings and the
sentence. /1/ The Court of Military Appeals summarily affirmed.
1. On January 13, 1987, Sergeant Mark Baker, a friend of
petitioner's, was interviewed by the Fairchild Base Security Police
about his large purchases of liquor from the base package store during
1986. Tr. 184. /2/ During the interview, Sergeant Baker, who was not
under investigation for narcotics crimes, volunteered that he had used
marijuana for the past two years and knew about narcotics use by other
servicmembers at the Fairchild Base. Tr. 188-191. The next day,
agents of the Fairchild Office of Special Investigations (OSI)
questioned Baker about his knowledge of narcotics use and trafficking
by other servicemembers. Tr. 191. Sergeant Baker agreed to work for
the OSI as an undercover informant and to make controlled purchases of
narcotics. Tr. 190, 192. Thereafter, Sergeant Baker made controlled
purchases from petitioner and others on several occasions. /3/ The
charges against petitioner (except for one specification) stemmed from
Sergeant Baker's role in those purchases.
2. At trial, in an effort to impeach Sergeant Baker's credibility,
defense counsel cross-examined him at length. The cross-examination
probed into discrepancies in Baker's initial statement to the OSI, Tr.
231-232, 279-282, Baker's financial problems and alcohol sales, Tr.
254-259, and the possibility that Baker's commander might be able to
persuade his superiors not to court-martial or to discharge him
because of his assistance to the OSI. Tr. 238-250, 254-264. In the
midst of cross-examination, defense counsel asked Sergeant Baker
whether a video cassette recorder (VCR) had been stolen from him. Tr.
265. After establishing that a VCR had been stolen and that Baker had
filed an insurance claim in June 1986 for the theft, defense counsel
asked whether the claim was fraudulent. Tr. 266-267. After Baker
said it was not, the prosecutor objected to any further questioning on
that subject on the ground that the inquiry was collateral to the
issues in the case. In response, defense counsel argued that the
question was proper under Mil. R. Evid. 608(b), because it was
probative of Baker's truthfulness. Tr. 268. The judge overruled the
prosecutor's objection, Tr. 269-270, but cautioned defense counsel
that extrinsic evidence of misconduct was inadmissible under the rule.
Tr. 270. When cross-examination resumed, defense counsel again asked
Baker whether his insurance claim was fraudulent, and Baker again
denied that charge. Tr. 271-272.
At that point, after establishing that Sergeant Baker knew an
Airman Gerald Harrington, defense counsel started to ask Baker, "(d)o
you recall telling him that he ought to do what you did * * *." Tr.
272. The prosecutor again objected. At an ensuing bench conference,
defense counsel argued that he was not offering extrinsic evidence,
but was seeking to offer, pursuant to Mil. R. Evid. 613(b), evidence
of a prior inconsistent statement to impeach Baker. Tr. 273-274.
According to defense counsel, Airman Harrington was dissatisfied with
a television set that he had recently purchased, and Baker told
Harrington that he could make some additional money by submitting a
false theft claim for the television, as Baker said he had done with
his VCR. Tr. 273. The trial judge disallowed the question, on the
ground that "it had a very limited collateral connection with this
case" and was "minimally probative of truthfulness as to this witness
concerning these charges and specifications." Tr. 274. /4/
3. The Air Force Court of Military Review affirmed in part and
reversed in part. Pet. App. 2a-8a. It vacated petitioner's
conviction for possession of cocaine on the ground that the evidence
was insufficient. Id. at 7a-8a. Otherwise, the court affirmed
petitioner's convictions and sentence. The court rejected
petitioner's claim that the trial judge erred by preventing the
defense from questioning Sergeant Baker about his alleged statement to
Airman Harrington. The court ruled that the trial judge did not abuse
its discretion in sustaining the objection to that question. Id. at
6a.
4. The Court of Military Appeals affirmed petitioner's conviction
in a one-sentence per curiam order. Pet. App. 1a. Although the court
did not discuss the merits of petitioner's claim, the court cited the
military harmless error statute, Art. 59(a), UCMJ, 10 U.S.C. 859(a).
ARGUMENT
Petitioner argues that the trial court erred in ruling that he
could not ask Sergeant Baker whether Baker told Airman Harrington that
he had submitted a false insurance claim for his VCR. /5/ According
to petitioner, the courts below erred by treating that question as an
effort to impeach Sergeant Baker with extrinsic evidence on a
collateral matter, rather than as an attempt to elicit an admission of
wrongdoing from Baker. Pet. 4-5, 7.
The Court of Military Appeals did not address the merits of
petitioner's claim. Rather, by citing the military harmless error
statute, 10 U.S.C. 859(a), the court appeared to conclude that the
alleged error was harmless and that the conviction should be affirmed
for that reason. Accordingly, the propriety of the trial court's
ruling is not the question here. The only issue is whether that
ruling, if erroneous, was so prejudicial that petitioner's conviction
should be reversed. Petitioner does not address that issue at all,
and that factbound question does not warrant review by this Court.
The Court of Military Appeals was correct in finding that any error
committed by the trial judge with regard to the disputed evidence was
harmless. The allegedly fraudulent insurance claim was collateral to
the issues in the case, and the court-matial panel already had a
substantial basis for assessing Sergeant Baker's credibility. The
panel was fully aware that Sergeant Baker might have been
"cooperating" with the prosecution in order to avoid being fined by
state liquor officials or being discharged from the Air Force. /6/
The defense was able use that evidence to contend that Baker had
contrived the entire scheme in order to deflect the OSI's attention
from his own activities. /7/ At the same time, the most damaging
evidence against petitioner was the combination of two facts: First,
on the occasion of each controlled purchase Sergeant Baker emerged
from petitioner's trailer with narcotics after the OSI agents had
painstakingly ensured that Baker was not carrying narcotics before he
entered. See page 3 note 3, supra. Second, petitioner did not rely
on an alibi defense, nor did he argue that someone else in the trailer
gave Baker the narcotics retrieved by the OSI agents. /8/ Under these
circumstances, the trial court's restriction on the defense
cross-examination of Sergeant Baker did not have a material effect on
the verdict.
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted
KENNETH W. STARR
Solicitor General
JOE R. LAMPORT
Col., OJAG, USAF
ROBERT E. GIOVAGNONI
Lt. Col., OJAG, USAF
TERRY M. PETRIE
Maj., OJAG, USAF Apellate Government Counsel Government Trial
and Apellate Counsel Division
JULY 1989
/1/ The court of military review found that the sentence was
appropriate in light of petitioner's disciplinary history, which
included a prior conviction for drug trafficking. Pet. App. 7a; PX
26, at 2.
/2/ Sergeant Baker had been experiencing financial trouble for the
past one-and-one-half to two years. To generate cash to pay his
debts, Baker would charge bottles of liquor to his account at the base
package store and then resell the liquor off base for cash at a lower
price. Tr. 185-187, 254-259. Over time, that practice compounded his
financial difficulties. The state liquor authorities were also aware
of his illegal practice. Tr. 188-189, 239.
/3/ The OSI agents followed the same procedure on each occasion.
When Baker arrived at the staging area, he was stripped and his body
cavities searched, his clothes were thoroughly examined, his car was
searched in its entirety (e.g., the interior, trunk, glove
compartment, floor mats, visors, underneath the dashboard, and any
packages in the car). Baker was given money after the serial numbers
were recorded. Baker was then escorted to his car by the agents, who
followed him to petitioner's trailer. The six agents, in three teams,
positioned themselves around the trailer while Baker was inside. The
agents followed Baker if he left the trailer in his car (although on
two occasions they lost sight of him temporarily). After he left
petitioner's trailer, Baker returned to the staging area, where he
gave the agents the narcotics and was searched once again. Within
15-20 minutes after each purchase, Baker gave the agents a statement
explaining what had occured inside the trailer. Tr. 117-127, 129-133,
139-141, 145.
Sergeant Baker made controlled purchases from petitioner of cocaine
or marijuana on January 21, 24, and 30, and February 2 and 6, 1987.
Tr. 119-145, 193-219. Petitioner also sampled the narcotics he sold
to Baker.
/4/ Later, petitioner called Airman Harrington to testify during
the defense case. At a hearing out of the jury's presence, defense
counsel asked permission to question Harrington about Sergeant Baker's
alleged statements about the theft of the VCR and the insurance claim.
The trial judge denied the request, holding that the testimony would
be extrinsic evidence of a collateral matter. Tr. 340. Harrington
then testified that, in his opinion, Baker was not truthful and did
not have a reputation for truthfulness. Tr. 344.
/5/ Petitioner claims that the trial court's ruling violated the
Confrontation Clause of the Sixth Amendment, Pet. 5, but petitioner
did not object at trial on that ground. He claimed only that the
question was proper under Mil. R. Evid. 613. See Tr. 268-271,
273-276. In any event, the Court of Military Appeals apparently
regarded the error, if any, as harmless, and an erroneous limitation
on defense cross-examination can be harmless. Delaware v. Van
Arsdall, 475 U.S. 673 (1986). See Olden v. Kentucky, 109 S. Ct. 480,
483 (1988).
/6/ Baker testified that, when he was stopped for speeding, he was
told by a highway patrolman that he was under investigation for
"bootlegging," Tr. 188, and that he was told by a member of the state
liquor control board that it was "more than likely" that he would be
fined for his activity unless he cooperated with the OSI, Tr. 188.
Baker also conceded that he had told the OSI that he had used
marijuana for one-and-one-half to two years, Tr. 191; that he had
been given an official reprimand for his drug use, but had not been
court-martialed or given a summary punishment under Art. 15, UCMJ, 10
U.S.C. 815, for those crimes, Tr. 240, 244, 246; and that whether he
would be discharged from the Air Force was dependent on his
cooperation with the OSI. Tr. 250.
/7/ Baker conceded that he volunteered that he was aware of drug
use by servicemembers and agreed to assist the OSI only after he was
questioned about his excessive alcohol sales. Tr. 184. Since Baker's
repeated liquor sales placed him deeper and deeper in debt, and since
he did not seek available financial assistance from the Air Force, the
defense also contended that "(Baker) was doing something else," and
"nobody has ever gotten to the bottom of what he was doing." Tr. 381.
Baker also conceded on cross-examination that he had not purchased
narcotics from petitioner during the past six months, and that Baker
did not mention petitioner's name to the OSI until after Baker had
been questioned about his sale of alcohol, Tr. 229-232, which allowed
the defense to argue that Baker had set up petitioner to take the heat
off himself.
/8/ Defense counsel contended in his closing argument that, after
entering petitioner's trailer, Baker slipped out the back door and
retrieved narcotics that he had previously hidden in petitioner's back
yard in order to frame petitioner. Tr. 378-380, 383. But petitioner
offered no evidence suggesting where in his yard the narcotics were or
could have been hidden. Moreover, Agent Childress testified that
Baker knew that he was under constant surveillance by the OSI agents,
but did not know where the agents conducting the surveillance were
positioned around the trailer. Tr. 124, 127, 129. During the first
controlled purchase, Agent Childress was also in a position to see
whether anyone left the trailer through the back door, and he saw no
one leave. Tr. 173, 176-177, 179-180. Petitioner's scenario is
therefore implausible.